02/09/2021

Most people would be surprised to know that in Australia (and apparently most common law countries like UK, NZ and the USA) you do not own your own body and the bits removed from it. You can own your house, car, investments and jewellery but not the very thing that makes for the essence of you (discussions about your “soul” or your “aura” are above my paygrade).

It’s somewhat paradoxical that in all these countries where personal freedom and the right to acquire and own property are paramount, there’s such a gap in our rights.

Perhaps we shouldn’t be surprised given the many laws and regulations limiting what people can do with their own body. For example, in some of these jurisdictions it is illegal to use or deal with your body by ingesting certain drugs, having sex for money (prostitution), ending pregnancies (abortion) and even taking the life that inhabits that body (suicide).

The use of your body may be more regulated than the car in your garage. In the US, courts have held that you have no interest in your own cells even when they are used for commercial purposes and even when the people who donated their cells were lied to about the purpose of the donation.

Equally curious is the fact that your Executor may have more power over your body than you did while alive.  It is the Executor’s role (among other things) to take possession of your deceased body and arrange for its proper disposal under the relevant law (burial, cremation etc). That role can be exercised by the Executor without reference to your wishes … almost.

The basic inability of a deceased to bind their Executor as to disposal of the deceased’s remains in a designated manner stems from the fact that your Will is only enforceable on matters of property. Directions about things like disposal of your body, arrangements for your funeral and even who is to look after your minor children, are not enforceable under the law.

There may be exceptions.  For example clause 77 of the NSW Public Health Regulations makes it an offence to cremate a person against their written direction to the contrary.

Which brings us to the problem of your relatives who want to argue about how to dispose of your remains.  Four recent cases have highlighted the issues. The cases make clear that every person making a Will should state clearly what they want, because even if unenforceable, such statements are important evidence that a Court can rely on when resolving family disputes on the issue.  They may even prevent those disputes in the first place.

In the NSW case of McCredie v Batson (2020) the two daughters who were the Executors could not agree on the ceremonial arrangements for the funeral and cremation. The Court could have appointed new Executors due to the daughters’ inability to agree, but the Judge chose instead to give detailed instructions for the funeral service.

In the Victorian case of Marinucci v Condo (2020) two of the deceased’s five children were the Executors.  More than two months after her death the deceased was still not interred due to disagreements among the Executors and the other children as to her funeral and burial arrangements.  After Court proceedings were commenced an agreement was reached but on the issue of legal costs the Court found one of the Executors was stubborn and unnecessarily adversarial and awarded legal costs against her personally (not to be recovered from the estate).

In the English decision of Accoom v Pickering (2020) the deceased had no Will and the place of burial therefore had to be decided by the Court.

Finally in the WA case of Smith v Smith (2021) again there was no Will and the parties had different views about what the deceased had previously requested.  The Court commented on how unfortunate it was that the deceased had not written down her wishes.

The lesson here is firstly, make sure you have a Will, and secondly, ensure that you state clearly whether you want to be buried or cremated and whether you want your funeral conducted as a civil service or according to the rites of a particular church or religion or even that you leave those matters to be determined by your Executor with a fall back if they can’t agree.

For further information, please contact Townsends Business & Corporate Lawyers on 02 8296 6222 or email info@townsendslaw.com.au.